Back during the Clinton impeachment, I read a lot from conservatives about how perjury and obstruction of justice were dangerous crimes that struck at the very heart of our legal system. Given that, it's been interesting to see the recent conservative calls for Scooter Libby to be pardoned for his perjury and obstruction of justice crimes. As I understand the New Learning, the real question now is whether the witness was put under oath for a really good reason. If not, then lying and obstructing justice are understandable; the witness shouldn't have been put in the position to lie in the first place, so it's not really so culpable that he did. Poor Bill Clinton. I guess he was just ahead of his time.

What I'm hearing is that since pardons are legal, it wouldn't undermine the rule of law to issue a pardon. Of course, prosecutorial discretion is also legal, and yet I remember hearing that it was IMPERATIVE to put Clinton on trial lest the rule of law become a laughingstock.

On the other hand, Prof. Kerr, you may be asking for trouble by mocking Jim Lindgren's favorite blog like this.

Note that it's a lot easier to forget what you told some reporter (as Libby claims) than to forget whether you had a sexual relationship with someone (as would be necessary to absolve Clinton of perjury).

Note also that former Clinton Administration official Sandy Berger got no prison time for deliberately destroying classified documents and lying about it.

Of course, his politics were probably similar to the "career" justice department attorneys who let him off with a slap on the wrist.

(I worked in the government, and I can tell you that "career" attorneys are often further to the left than Bush Administration appointees are to the right).

William Otis is right. Libby should have been fined the $250,000, but not jailed.

His conduct was inexcusable, but not as bad as, say, Sandy Berger's.

Perhaps his sentence should be commuted to reduce or eliminate the jail time.

(His prison sentence is twice as long as what the Federal Probation Office thought might be appropriate).

Well, maybe we can all agree that the Clinton impeachment was about sex after all, which is apparently not a good reason to lie. Libby lied to protect the administration's scheme to retaliate against critics of the war, which is apparently a good reason. So, pretty much what EvanH said.

There is a difference. With Pres. Clinton, there was indeed an underlying offense that he was culpable of, the sexual harassment of Paula Jones. Pres. Clinton's similar conduct with Lewinsky (more consensual, perhaps, but on the same level as what he tried with Jones) would have bolstered Jones' claims in what was, after all, a her word against his case.

In the Libby case, however, Fitzgerald already knew, as I understand it, that Armitage was the source of the Novak leak before he ever questioned Libby. Plus, he failed to verify, as best I've been able to determine, whether Plame had any "served overseas" during the preceding 5 years. To this day, in the sentencing memos, he attempts to use the CIA's much more generic definition of "covert" to say that Plame was covered by the IIPA.

Combine that with the fact that the reporters' memories didn't always seem to be much clearer than Libby's (recall that Miller once denied a particular call or meeting until Fitzgerald confronted her with her day planner), and I think there are good reasons to question the conviction.

I'm not saying the prosecution was wrong or even that Libby should be pardoned. I only suggest that there are legitimate, non-hypocritical reasons for distinguishing the two cases.

These conservatives are such hypocrites. Not only is lying about a blowjob an impeachable, serious felony whereas lying about outing a CIA agent (or however you want to frame it) is perfectly justifiable, but suddenly sentencing someone for "relevant conduct" not committed by the defendant is a travesty of justice. These are the same people who have, for two decades, had no problem with punishing a felon in possession of a firearm for the murder someone else may have committed with the firearm but was acquitted of. Of course I'm not bashing Scalia here, as the Booker revolution was his doing.

If not, then lying and obstructing justice are understandable; the witness shouldn't have been put in the position to lie in the first place, so it's not really so culpable that he did. Poor Bill Clinton. I guess he was just ahead of his time.

Did I miss the part where Clinton was sentenced to 30 months in the pen?

The Powerline post also repeats the laughable talking point that Armitage was THE leaker. In fact, in the real world and not the parallel universe created by Powerline, there were at least four leakers within the administration: Armitage, Libby, Rove, and Fleischer. Fitzgerald's job was to investigate whether any of them had actual knowledge of Plame's classified status, a predicate for liability under the IIPA.

It's not that complicated, but acknowledging these basic facts would require one to admit that Fitzgerald was, in fact, attempting to investigate a serious crime. That would be a bridge too far for the Powerline bloggers.

I don't have that much sympathy for Libby, but exactly which conservatives argued that Clinton should be imprisoned? Are people really arguing that there's no meaningful distinction between removing someone from office and throwing him in a cell for several years?

The alternative explanation (excuse?) given by PatHMV also bring up an interesting question: is a pardon appropriate when the President simply believes that the judicial system got it wrong on a factual determination of guilt? My understanding is that the pardoning power of the President was intended to be used for forgiving a crime that was committed, not to overrule a decision made by the judiciary regarding guilt or innocence.

I love that parallel universe. Apparently, the latest development in it is that Hans Blix and the weapons inspectors never existed: Saddam never let anyone into his country, and no one ever confirmed that there didn't seem to be any WMDs there after all. Even the "Saddam kicked the inspectors out" alternate reality is gone, replaced by the "there never were any inspectors at all" retcon, which appears to be the line of even some of the Republican candidates for President now.

The Powerline post also repeats the laughable talking point that Armitage was THE leaker.

I think the point is that the first leak, and the leak that was problematic was (IIRC) to Novak, since Novak is the one that published, and thus, if any harm flowed from the publication, the causal chain runs back to the man who leaked to Novak. Who was, I think, Armitage. Or maybe I have got it entirely confused -- I have forgotten who all the players were here.

Speaking as one who is more cautious than conservative but who reads a lot of conservative websites, I'm not sure all that many conservatives are making a sudden case for perjury and obstruction being trivial; the common argument is that the jury, beguiled by an unscrupulous prosecutor, simply got it wrong.

"Libby lied to protect the administration's scheme to retaliate against critics of the war . . ."

If I may, Igglephan, I just wanted to add that the hit on Plame was a double whammy. It wasn't only intended to attack Wilson. Plame's unit was actively investigating Iran and its weaponry. Can't let facts get in the way of the admin's (still ongoing) efforts to "preemptively" attack another sovereign nation. What better way to achieve that end than to silence and destroy all those who might actually know the truth about how much of a threat Iran really is?

The most interesting issue, however, is why the extreme-leftwing, hippie-dominated MSM didn't make a big deal of this.

Path, that's pretty weak. First, you can't assert that he was guilty of sexual harassment of Paula Jones. As I recall, her case was thrown out, and later settled before an appeal could be heard. And Monica Lewinsky made quite clear that she was not sexually harassed, so her experience does not serve as any sort of relevant corroborative evidence.

This of course brings out the hypocrisy of both sides about the significance of perjury. I guess I'm a "soft on crime" guy who thinks that neither episode was terribly serious and that Libby was oversentenced. The problem is the special prosecutor system, I suspect, which puts a premium on overprosecution. How many perjuries would we find if everyone's testimony were subject to this scrutiny?

I hope that Ms. Plame, who apparently lied under oath to Congress about her role in getting her husband a government-payed junket to Africa, will be frog-marched to court and given at least as much punishment as Libby.

And of course Clinton's dissembling had nothing whatsoever to do with Whitewater (the ostensible reason for the investigation). Unlike Libby's. I don't really understand the meme that the fact that Armitage's leak was the one that lead to publication is somehow supposed to exculpate Libby. Armitage, Libby and Rove all leaked about Valerie Wilson's status; they were therefore all potentially subject to prosecution either for the leaking or obstructing investigation of the leaks.

I imagine some element of the Richard Mellon Scaife funded smear machine probably did argue at some point that Clinton deserved to go to jail. However, Clinton's guilt was never established in any tribunal, even the political one of the Senate--recall that he was acquitted in his Senate trial. So while you may believe that the known public facts establish Clinton's factual guilt of something (and I would agree), he is not legally guilty of anything in the way that Libby is.

PatHMV wrote: "With Pres. Clinton, there was indeed an underlying offense that he was culpable of, the sexual harassment of Paula Jones. Pres. Clinton's similar conduct with Lewinsky (more consensual, perhaps, but on the same level as what he tried with Jones) would have bolstered Jones' claims in what was, after all, a her word against his case. "

But that's wrong. The Jones case was dismissed -- NOT because his word prevailed over hers, but because her words, taken as true, didn't constitute an actionable claim. There was no bolstering needed, as Clinton was granted summary judgment (yes, he later settled before the outcome of an appeal was made known, but still, the dimsissal had nothing to do with his testimony about Lewinsky).

I'm not saying anything about poor old memory-impaired Scooter here, but get you precedents straight.

Are you really saying and do you really believe, that liberal career attorneys at the DOJ actually ran the whole Berger case and politicals stayed away and permitted it? Give me a break!

I think the conservative suspicion is that the Republicans approach the political crimes of Democrats with a Sgt. Schultz-like I see nothing, nothing...! and roughly for Sgt. Schultz's reason, to avoid having to take a stand.

Anderson... to which statement of Fitzgerald's are you referring? He has stated that she was "covert," citing a CIA summary document that says she was covert. But neither he nor the CIA has ever, to my knowledge, alleged flatly that Plame "served overseas" in the 5 years before all these leaks.

I add that Steve makes a good point that is important to keep in mind, that there may have been multiple independent leaks, each of which Fitzgerald was entitled to investigate. While Novak was the first to publish, the other leaks, which took place before Novak published, would be equally culpable, because Plame's name was not in the public domain until the first publication by Novak.

But again, the point here is not to debate (again) all the evidence of the Libby trial, but to address Orin's suggestion that some on the right are being hypocritical by calling for Libby's pardon after denouncing Clinton's perjury.

JK... the pardon power is absolute and unreviewable, so the practical answer to your question is, it doesn't matter what the official purpose for having it is. Beyond that, having spent 4 years as a pardon attorney for our governor, I can tell you that pardons are issued for both reasons. Our respect for the courts and juries makes it rarer for a pardon to be issued because of a believe that the jury got it wrong, but it's not unheard of.

Libby was sentenced (at Fitzgerald's request) as though he had committed the crime of outing a covert agent, even though he did not, and even though Fitzgerald successfully claimed during the liability phase that Plame's covert status was irrelevant as a way to avoid turning over evidence that would likely have shown that she was not covert.

How is that fair? And how does that relate to whether or not Bill Clinton's lying under oath was or was not reprehensible? And how does it relate to whether he should have been impeached?

I just don't think your argument confronts the issues with any seriousness.

Another distinction is that many believe Libby isn't guilty of obstruction, even though a jury found otherwise, while Clinton's guilt was not in question.

It's open question whether Libby is guilty and there's no question Clinton was guilty? Hello. If anything, you have that backwards. Libby was convicted by a jury of his peers (a jury which appears by all accounts to have been notably careful and fair). Clinton, in contrast, was not convicted by the Senate. (Of course there are people who dispute the result in both cases.)

I see it as folly to find perjury excusable or inexcusable based upon the subject which the defendant is lying about, or the circumstances that "caused" them to lie. National security or infidelity should come of no consequence in the discussion regarding whether or not the party committed perjury. In both cases (clinton and libby), they knew they were under oath, and in both cases they chose to forsake their oath and say something they knew wasn't true. They both should be (or in Clinton's case, should have been) prosecuted for perjury. The issue is simply whether or not Libby lied under oath (or whatever the elements of perjury are). Expanding this into some larger discussion about whether Fitzgerald was undertaking a "fishing expedition" only serves to conflate the issue.

Josh... that's not correct. The sentencing guidelines for perjury and obstruction of justice require the judge to look at the crime being investigated by the investigation which was obstructed. Perjury in a murder case carries a stiffer penalty than perjury in a petty theft case. Thus, it was appropriate for Fitzgerald to show that he was investigating an IIPA violation. It was the nature of the investigation, not the actual truth of whether there was an underlying violation of IIPA, which allowed for the higher sentence.

Where things get confusing is that Libby argued in mitigation that there was no underlying crime committed. That was just pure mitigation evidence. Fitzgerald responded to that argument for mitigation by arguing that there really was an underlying crime. Frankly, I don't think Fitzgerald met whatever burden may be required to establish that, but the argument that there really was an underlying crime was made only in response to Libby's mitigation argument. It was not made as an independent grounds for enhancing the sentence.

Anderson... to which statement of Fitzgerald's are you referring? He has stated that she was "covert," citing a CIA summary document that says she was covert. But neither he nor the CIA has ever, to my knowledge, alleged flatly that Plame "served overseas" in the 5 years before all these leaks.

Fitzgerald did say that Plame had served overseas in that time period: (see MSNBC article)

Plame worked as an operations officer in the Directorate of Operations and was assigned to the Counterproliferation Division (CPD) in January 2002 at CIA headquarters in Langley, Virginia.

The employment history indicates that while she was assigned to CPD, Plame, "engaged in temporary duty travel overseas on official business." The report says, "she traveled at least seven times to more than ten times." When overseas Plame traveled undercover, "sometimes in true name and sometimes in alias -- but always using cover -- whether official or non-official (NOC) -- with no ostensible relationship to the CIA."

No. An impeachment is the equivalent of an indictment, but it's not a criminal indictment. And it still requires conviction by the legislative body. Clinton was impeached, but not convicted. Conviction removes the impeached person from office, but is not a criminal conviction and does not preclude prosecution for any underlying offenses.

In his sentencing memorandum, Special Counsel Fitzgerald asserted that under the Guidelines, it does not matter whether the investigation ripened into an actual criminal charge against the defendant or anyone else. On this point, it looks like Fitzgerald has a pretty good legal argument, based on the text of the Guidelines and the accompanying materials.

And it's not hard to see why. The mere fact that the underlying investigation did not result in criminal charges can't be the difference-maker. If it were, then a really successful cover-up would result in more lenient sentencing for a perjury/obstruction defendant, than would a less successful one - that is, one which led to criminal charges. That makes no sense, as it rewards talented and effective deception, the most dangerous kind.

It's called "obstruction of justice" for a reason. Stepping back for a moment, it appears very likely that Cheney knew or had reason to believe that Plame was covert, at least in *some* sense of the term. The trail of evidence led up to him, and was cut short by Libby's testimony.

I am *not* saying that Cheney was guilty of any crime; rather, that he was a plausible suspect, and that in any case it was negligent of him not to take more care lest a covert agent's status be revealed as part of his own political machinations.

The statement provided was vague, and does not provide sufficient information for determining whether Plame met the statutory standard for "service" overseas. Popping over to Rome for a diplomatic reception using one's cover passport doesn't qualify.

It could be cleared up quickly with Plame's employment records, which would note "overseas ervice" she was actually credited for, and when. They have not been provided. Leaving the accusation/allegation as just that--an accusation/allegation sourced solely on the prosecutor's word, with no substantiating evidence provided.

Plame and her publisher, Simon &Schuster, sued the CIA in a New York federal court on May 31. They accused the government of illegally refusing to let Plame write about the specific dates she worked for the agency.

The CIA, which has acknowledged only that Plame worked for the agency since 2002, must approve all writings of former officers before they can be published.

"The sole benchmark is whether it contains classified information," CIA spokesman Mark Mansfield said. "The concern is that publication of the manuscript as submitted would cause additional damage to operations and would affect the CIA's ability to conduct intelligence activities in the future. That's the issue here and it's an important one."

Plame contends in court documents that the CIA released information about her work history in an unclassified letter about her retirement benefits. The letter, which the CIA says was sent inadvertently, was ultimately entered into the Congressional Record and says that Plame worked at the CIA for more than 20 years.

I dunno whether the overseas stuff would be addressed, but as is well rehearsed by this time, the CIA itself is Fitzgerald's source for Plame's meeting the IIPA. I think that a federal court can be excused for accepting that in the context of sentencing.

Could Libby's counsel have subpoenaed the records to prove that no IIPA offense could've occurred? And if so, why didn't they?

Orin,
Since you brought up the Clinton impeachement, I'll explain to you why Clinton's perjury was much worse than Libby's. When Clinton lied it was to deny a woman a fair trial in her claims of being sexually harrased. There not only was a victim in his perjury, there was an intended victim.

Libby lied and there should be some sanction, but I found Fitzgeralds conduct in this case Nifongish. The difference being that Nifong withheld exculpatory evidence from the accused after the indictments, where Fitzgerald withheld exculpatory evidence from the targets of his investigation until they were indicted.

And then there is the actual substance of Libby's lie, the lie he is accused of telling is telling the GJ he talked about Plame to a Russert, when the topic never came up. I just don't see someone getting 30 months for that.

The statement provided was vague, and does not provide sufficient information for determining whether Plame met the statutory standard for "service" overseas.

It's not the statement that's vague, it's the statute. The IIPA doesn't specify what it means to have "served overseas"; it certainly doesn't make her employment records dispositive.

Had someone been charged with an IIPA violation, they'd be entitled to argue that whatever Plame did didn't count as "overseas service." They'd be entitled to discovery as to her service record, and the court would make a legal ruling.

What happened in the real world is that Fitzgerald determined at the very outset of his investigation that Plame appeared to meet the two statutory requirements to be covered under the IIPA: the CIA had made efforts to conceal her employment, and she had worked overseas in a covert capacity within the last five years. Now of course, he didn't go to a judge and get a legal ruling as to exactly what it means to "serve overseas"; that's not what ever happens at the outset of an investigation.

Having determined that Plame appeared to meet the statutory criteria, he set about investigating the more difficult question: who were the people that leaked her classified employment, and did they have actual knowledge that she was covert? And it's that ongoing investigation that Libby was convicting of obstructing, by lying about where he had heard about Plame.

The argument of Libby's defenders is that the investigation never should have continued past day one, because Plame clearly wasn't covert. In fact, Fitzgerald certainly had a good-faith basis to conclude that the definition was satisfied and to continue his investigation. Just because some defendant MIGHT, at the end of the day, be able to construct a colorable legal argument that Plame's service didn't satisfy the statutory language, that hardly provides a basis to shut down the investigation altogether.

You're not quite right, and moreover you've simplified it so much that you've missed my point. The relevant provision is section 2J1.2. It provides for an enhancement if bodily injury or property damage was involved in the underlying crime or if "the offense resulted in substantial interference with the administration of justice."

Libby's argument was straightforward-- there was no substantial interference because there was no underlying crime. Fitzgerald asserted that there was, and got an enhancement on that basis, even though he had been earlier allowed to withhold evidence that would likely have shown that there was no underlying crime.

The difference being that Nifong withheld exculpatory evidence from the accused after the indictments, where Fitzgerald withheld exculpatory evidence from the targets of his investigation until they were indicted.

What exculpatory evidence? Fitzgerald has consistently represented that he has no evidence in his possession to suggest that Plame was not covert. No one has ever shown to the contrary.

You keep mistaking the fact that Libby MIGHT have had a technical defense to an indictment under the IIPA for an ironclad conclusion that the IIPA was clearly inapplicable from day one.

Kazinski: the federal sentencing guidelines can take account of all relevant conduct that surrounded the offense, including crimes not charged. This happens all the time. Say someone convicted of selling a small amount of crack. That person's sentence could still be based on the fact that the Judge (and not any jury) found by a preponderance of the evidence (_not_ beyond a reasonable doubt) that in addition to the crack, there was a murder involved.

Steve, the problem as I see it is that I've seen no indication that Fitzgerald even bothered to look at Plame's personnel file to determine whether she "served overseas" during the 5 year period. As Tully notes, attending an embassy cocktail party probably doesn't count (unless of course she was working a spy at the time).

I'm not asking for classified details. I'd be perfectly happy if some CIA official would sign an affidavit that Ms. Plame "served overseas within the 5 years preceding [the date of Libby's leak]." That's a simple, straightforward statement. Thus far, the CIA has absolutely refused to make it, either in court or in the congressional testimony. Instead, they continue to muddy the waters by regularly using the word "covert" as they normally use it (i.e., a classified employee), without making clear the distinction between their normal, day-to-day usage of the word and the stricter definition provided by the IIPA.

I think Fitzgerald could have and should have made that inquiry, which involves nothing more than looking at CIA personnel records, as the very first step in his investigation. Yet to this date, I see no assertion in the record that he ever has.

Anderson, that is my understanding as well; I don't know for a fact whether Libby's lawyers repeated their request for her personnel records during the sentencing phase and if they didn't why they didn't. I'd want to look at the reasons given for quashing the subpoenas the first time around; they may have thought there was no reason for the grounds to change in the sentencing phase.

Steve:
The exculpatory evidence for Libby was that Fitzgerald knew who the leaker was. Armitage admitted to the leak and the VP's staff had nothing to do with it. Not only did Armitage leak it first he kept leaking it until he found a reporter that would run with it.

I would be surprised to hear that Libby's lawyers never asked for the documents as relevant to sentencing, since I know that they strenuously argued that Libby did not deserve an enhancement because there was no crime ever charged.

Even if it were true, and the judge made that statement at sentencing, he was being disingenuous in my opinion. The judge was well aware of the fact that they didn't have this information and that Fitzgerald had been allowed to cherrypick evidence to present in favor of an enhancement.

I would love to have a better idea of the source for the statement that Libby's team never asked for this information.

In response to the other bit, I have no real problem with Fitzgerald not turning over the information at the liabiltiy phase, but he should not then have been allowed to argue using information that the defense had never seen. I don't know off the top whether that's a potential Brady issue, but it is certainly unfair.

I don't understand the latest conservative wilting either. OTOH, I still get chills thinking of the sophistry employed to defend Clinton.

I believe both Clinton and Libby are liars beyond any reasonable doubt; that Clinton should have been convicted by the Senate and Libby should report to jail immediately.

Why do I feel so alone?

Because both prosecutions are clouded by a lot of politics.

The Clinton impeachment was the culmination of a years-long effort to nullify Democratic votes. The defense of Clinton was a defense of our votes. That Republicans dressed the charade up as "the rule of law" was to their great discredit. Given that charade, I think it was permissible, even necessary, for Democrats to fight back by nitpicking and legalism. You cannot have the rule of law without nitpicking and legalism. You were uncomfortable, I am sure, to see half our politically active population wheedling and expostulating like defense attorneys with a tough brief. It was a sorry display, but we were six years into an effort to undo our pick for president. We were defending our vote. It would have been bad for everyone, right and left, if Scaife and his checkbook had been able to undo an election.

The Libby business is less overblown and rancid ... the guy did lie to a grand jury, so he had some trouble coming ... but is still unpleasant to watch. Some on our side were hooting and laughing and talking about "Fitzmas." Now the Republicans are nitpicking, wheedling and expostulating like defense attorneys. They are stickin' with their guy at the cost of appearing to claim that it's ok to lie to a grand jury as long as, well, whatever it is their saying.

Unpleasant all around, but I think it is inhuman to expect people to lightly step back from one of their own, saying "let justice be done, though my bud's head tumble."

There seems plenty of hypocrisy to go around here. Many of the same Conservatives slamming President Clinton want Libby to get off, while many of the Liberals who wanted us to overlook Clinton's dishonesty are ready to throw the book at Libby. By the same token evaluation of the performance of the prosecutors seems to depend on your politics as well. If you ask me, they are both good reasons not to have special prosecutors.

To my thinking on fellow who seems to deserve far more opprobrium than anyone is heaping on him is Armitage. Who not only was the initial leaker to Novak, but who could probably have short circuited the whole thing by coming clean earlier.

First, under the new sentencing regime the sentencing guidelines are merely advisory, and the sentencing judge has at least some amount of discretion within the entire statutory range (subject to some sort of review by the COA, and defining how that review is supposed to work has been quite a difficult task for the COAs).

Second, the sentencing guidelines are quite clear that the cross-referenced conduct need not be associated with an indictment or convinction in order for the relevant enhancement to apply. Rather, it is enough for the investigation to be prematurely or improperly terminated or for the government to unnecessarily expend substantial resources. As many have pointed out, it would make little sense to require a convinction on the cross-referenced conduct since successful obstruction, perjury, etc. could actually prevent that from happening.

Third, generally the burden of proof at sentencing is the preponderance of the evidence. Again, in this particular case it would make little sense to require the government to prove the commission of the relevant crime beyond a reasonable doubt since the whole point of the obstruction, perjury, etc. may have been to prevent that from being possible. I understand the general objection to this relatively low standard of proof, but here I actually think it makes a lot of sense.

Fourth, the CIA employment summary discussed Plame's travel while she had the relevant position, although it was vague about exactly when that occurred (as one would hope, since that is probably still dangerous information for people to learn).

Finally, when thinking about other sentences it is worth noting that the sentencing guidelines contain a reduction for an acceptance of responsibility, but Libby did not avail himself of that reduction.

Tully: The statement provided was vague, and does not provide sufficient information for determining whether Plame met the statutory standard for "service" overseas. Popping over to Rome for a diplomatic reception using one's cover passport doesn't qualify.

Really? Can you point to some case law describing the standard for "overseas service"? Without some pre-defined legal standard I don't see why it wouldn't simply mean being in a foreign nation while acting in your capacity as a covert agent. I find it hard to believe that the legislature intended that the substance of the agent's covert actions to be required as evidence at trial.

Steve:
The exculpatory evidence for Libby was that Fitzgerald knew who the leaker was. Armitage admitted to the leak and the VP's staff had nothing to do with it. Not only did Armitage leak it first he kept leaking it until he found a reporter that would run with it.

You can't put this horseshit over on me. There were at least four separate leakers to the press; Armitage, Libby, Rove, and Fleischer. There's nothing exculpatory in the least about the fact that Libby wasn't the only person in the administration leaking to the press.

The question was whether any of those leakers had the requisite knowledge to be liable under the IIPA; that's the part of the investigation that Libby obstructed. You want to peddle this line that Armitage was "the" leaker, find someone ignorant enough to buy it from you.

I agree there is a great deal of hypocrisy on both sides. I don't buy Andrew Okun's defense of President Clinton that it was people defending their votes with Richard Mellon Scaife as the bogeyman--though certainly the counterargument is that many Republicans see the same thing, though with George Soros in the evil financier role--and all the rancor following Bush v. Gore.

My rule of thumb is this: Change the names. If you think that President Clinton should have been impeached and removed from office for lying to a grand jury, would you feel the same way about President Bush if he did?

If a senior Administration official lied to a Grand Jury during the Clinton Administration, how is the different than what Scooter Libby has been convicted of doing?

And then think about your reactions to this case as well--and ask yourself if you would be feeling the same way if the shoe was on the other foot.

If you claim there is a distinction because Republicans/Democrats are good and Democrats/Republicans are evil, then you are engaging in partisan hackery--and that goes for posters on ALL sides of this.

I would love to have a better idea of the source for the statement that Libby's team never asked for this information.

You want a better source than the judge's own statement, at the sentencing hearing, that the defense never requested the documents in connection with the sentencing phase? You realize the defense attorneys were standing right there while he said it, right?

The fact is that Fitzgerald does not have to prove an IIPA violation in order to get an enhanced sentence on the grounds that an investigation into a potential IIPA violation was obstructed. There's nothing material that was withheld from the defense, at all.

I suppose Libby's contributions to society (and to the right candidate's campaign coffers) fall short of those made by his former client, alleged tax evader Marc Rich, and keep him out of the running for a presidential pardon.

BTW I'd like to join martin in saying that both Clinton and Libby are guilty of a serious crime. The distinction that are being made on both sides strike me as trivial.

If we stipulate that Clinton was guilty of perjury and/or obstruction of justice, I agree with that statement. But...

I'm not familiar with the minutiae of what definition Clinton was given for "sexual relations" and all that, but I thought this was not established. In particular, 55 Senators found Clinton "not guilty" of perjury (counting Specter's Scottish flourish as "not guilty") and 45 "guilty" versus 67 that would have been required for conviction. The vote on obstruction was 50-50. Fully 9 Republicans voted "not guilty" on perjury and 5 on obstruction. I don't understand why so many people here are assuming that the unconvicted Clinton was guilty (in some cases while simultaneously equivocating on the convicted Libby's guilt).

You know better. President Clinton was never criminally charged. Your deliberate conflation of the Senate vote on conviction and a criminal conviction does disservice to your argument.

There is no doubt that President Clinton lied to a grand jury. He just was not prosecuted or convicted in a criminal court. If you want to give Clinton talking points instead of serious argument then go ahead, but I suspect most will disregard it as "white noise."

Dave N, I am aware that a Senate trial is not the same as a regular criminal trial, thanks. And I appreciate your announcement that you have "no doubt that Clinton lied to a grand jury".

But I do not think that opinion is universal as you would like to pretend. As I said I'm not on top of all the minutiae of the controversy, but I thought the situation was ambiguous. In particular the definition of "sexual relations" Clinton was told to use, taken literally, did not include oral sex. Or some such issue along those lines. I personally have not sifted through all the evidence and drawn my own conclusion, as perhaps you have.

But if it was so clear that he would have been found guilty had he been criminally chaged, why did so many Senators -- including some Republicans -- find him not guilty? My argument is not that the Senate trial is dispositive, just that it is suggestive that presumptions of criminal guilt are inappropriate.

I don't accept that the vote by the Senate, which was a political decision and based on the subjective beliefs of any particular Senator, can be realistically compared with the vote of a jury, which is a legal decision made by applying the law to the facts presented.

Dave N: "There is no doubt that President Clinton lied to a grand jury."

Again, let's get our facts straight. Clinton lied about his internal affairs in a deposition during a civil lawsuit, not in front of a grand jury, which investigates crimes. Even if the underlying case against him had proceeded, it was a civil lawsuit, not a criminal investigation. If you're looking for a differential between him and Scooter, that should be enough. Moreover, Clinton's motives may have been to derail the lawsuit, as some have alleged, or may have been to avoid public embarassment, save his marriage, avoid a front--page sex-scandal schadenfraude-fest, or a host of other reasons. Just as Scooter may have forgotten, misspoke, lied to cover Cheney's butt, or a number of other explanations. Except a jury found "lied" the best answer.

The idea that the judge didn't know that Libby's legal team wanted that information is silly. And even if they never made a formal request at the sentencing stage, the judge is disingenuously grandstanding, period.

Second, the idea that Libby's lying substantially interfered with anything is ridiculous. The point is not that there was no indictment or charge. The point is that if Valerie Plame was not covert, it would have been IMPOSSIBLE FOR ANYONE TO HAVE DONE ANYTHING ILLEGAL IN THIS CASE, since her identity would not have been protected, no matter who leaked.

If a crime not only was not, but COULD NOT have been committed, what the hell are we all talking about? Why are we here? It's a simple question, and Fitzgerald should have been required to answer it-- certainly before getting a sentence enhancement.

Fitzgerald should not have been allowed to withhold evidence that would have shown whether a crime was even possible or not (evidence that he had in possession from the beginning) while simultaneously arguing that a crime was or could have been committed and therefore that a sentence enhancement was warranted.

Again, let's get our facts straight. Clinton lied about his internal affairs in a deposition during a civil lawsuit, not in front of a grand jury, which investigates crimes.

To be fair, Clinton's impeachment dealt with (among other things) his false statements to a grand jury. The article of impeachment relating to false statements made in his deposition was not passed by the House, and so was never voted on by the Senate.

The grand jury was convened by Star in order to investigate "whether Monica Lewinsky or others obstructed justice, intimidated witnesses, or committed other crimes related to the case of Jones v. Clinton."

Fitzgerald should not have been allowed to withhold evidence that would have shown whether a crime was even possible or not (evidence that he had in possession from the beginning) while simultaneously arguing that a crime was or could have been committed and therefore that a sentence enhancement was warranted.

Fitzgerald advised the Court very early in the case that he had no evidence in his possession that would help the defense prove that Plame was not covert.

The idea that the judge didn't know that Libby's legal team wanted that information is silly.

The only thing that's silly is your notion that the judge is supposed to order the CIA to turn over classified documents that the defense hasn't even requested.

Why didn't the defense request these documents for the sentencing phase? Two possibilities come to mind: (1) they dropped the ball; or (2) they knew the documents wouldn't help them. I'd be speculating if I tried to choose.

Second, the idea that Libby's lying substantially interfered with anything is ridiculous. The point is not that there was no indictment or charge. The point is that if Valerie Plame was not covert, it would have been IMPOSSIBLE FOR ANYONE TO HAVE DONE ANYTHING ILLEGAL IN THIS CASE, since her identity would not have been protected, no matter who leaked.

Presumably, the CIA would not have referred this matter to the DOJ for criminal investigation if Ms. Plame had not been covert, because there would not have been any possible violation of the Intelligence Agents Identities Protection ACt. I think the factual issue that precluded Fitzgerald from prosecuting Libby for leaking her name was the difficulty in proving that Libby learned of her status as a covert agent, as opposed to someone who works for the CIA.

My guess is that Libby, apparently, lied to the FBI and DOJ during the investigation about how he had learned that Plame worked for the CIA (he said, from reporters but the jury found otherwise) because he thought he might have violated this statute, and wanted to preempt such thoughts by making it clear that, even if he leaked her name to the press, he learned of her identity from an unclassified source (no crime) as opposed to a classified source (which could be a crime). He essentially blew it, in his coverup, because he could have said that he knew she worked for the CIA, but didn't know she was a covert agent or had been (within the time frame) and I think that would have been much harder to prove to be a lie.

1) There are two separate issues here: Libby's guilt, and the appropriateness of the sentence. I remain unconvinced of his guilt, and hope he'll get it reversed on appeal. But that's not relevant to the sentence. He was convicted, and in sentencing him the judge had to assume that he's guilty. The question is whether, given that assumption the sentence was too harsh.

2) I was one who was saying that Clinton should have been charged, convicted, and imprisoned. And had he gone away for anything like 30 months, I'd have no problem with Libby's sentence. But that didn't happen. When Libby was indicted, my immediate reaction, which I've repeated every time the matter has come up, was that if he did perjure himself then he should share a cell with Clinton. In other words, he deserves the same sentence that Clinton deserved.

3) I can't see what's hypocritical about saying that a) Clinton should have been jailed; and b) Libby's crime was no worse than Clinton's, so he should not be treated more harshly.

4) It's all very well to say that leniency extended to one criminal doesn't give other criminals a legitimate expectation of the same treatment, but that argument assumes that any similarly situated criminal can expect conviction and an appropriate punishment, and the odd one who got away was simply lucky. I don't think Clinton's escape was blind luck.

5) One could also argue that yes, in the past the system has been unaccountably lenient, and Libby's sentence will establish a new norm, in which public figures who perjure themselves can expect to go to jail. The crime Libby was convicted of deserves this sentence, and anybody who commits the same crime in the future, whether Republican or Democrat, can expect the same. But I don't believe that for a second. Instead, contrasting Libby's treatment with that of Clinton, combined with the inexplicably lenient treatment of Sandy Burglar, it seems as if there's one law for Democrats and another for Republicans.

6) And that brings us to the other raging controversy, the US Attorneys affair, and Monica Goodling's testimony. The career DOJ is heavily Democrat, and previous D administrations have taken care to make it so. The "crime" to which Goodling admitted was her attempt to play her small part in correcting this imbalance, and it failed. The pattern is that when Ds are in power they pack the DOJ with their people, while when Rs are in power they obey the rule and hire neutrally. Over time this creates a career DOJ that knows where its bread is buttered, and that it will be accountable to the next D administration, however long it is in coming.

In particular the definition of "sexual relations" Clinton was told to use, taken literally, did not include oral sex. Or some such issue along those lines.

On the contrary, the definition specifically did include oral sex. What's more, the definition didn't just come out of thin air; the lawyers on both sides argued over what definition to use, and the final result was approved by the judge, and then Clinton read it and acknowledged that he understood it. He then lied.

Christopher Cooke:

Presumably, the CIA would not have referred this matter to the DOJ for criminal investigation if Ms. Plame had not been covert, because there would not have been any possible violation of the Intelligence Agents Identities Protection ACt.

That is precisely the presumption that Libby's champions don't accept. From the beginning they've demanded to know why the CIA made the referral, and have suggested that it may have been done precisely to sandbag the administration in time for the 2004 election, and/or to harm the neocon group within the administration, which was openly hostile to the CIA.

One of the curious things that has come out in this affair is the belief that so many Democrats seem to have that the CIA is staffed with loyal Republicans, who have been supportive of the Bush administration, when it's been clear for years that the opposite is the case. From the moment Bush took office, a powerful group within the CIA was working against him, and the neocons weren't afraid to talk publicly about that. Porter Goss was sent in to clean up the mess, so they sabotaged him; he's gone and they're still there, and now they're preparing for a D president.

One more thing: The reason Clinton wasn't prosecuted had nothing to do with the weakness of the case against him; it was the prosecutor's judgment, probably correct, that it would be impossible to get a DC jury to convict him of anything, no matter how much evidence was presented. If Bill had butchered Hillary and her lover, and attempted to escape in a slow-moving white Bronco, it would still have been difficult to get 12 DC jurors to convict him.

I understand the gut reaction of many Republicans that we're seeing two different rules of law -- one for Republicans and one for Democrats. Like Milhouse noted above.

Where can I see evidence of this? I mean systematic and institutional evidence, not simply the Libby/Berger comparison... one comparison isn't going to go very far. Then I could counter with Jefferson.. and so on.

Because unless there is a systematic problem, then even if the Libby conviction is the result of a partisan jury, isn't that just what's going to happen in a jury system? You pick citizens, sometimes you get strange results. Seems like the entire point of sentencing guidelines and Scalia-esque opinion is to exalt the position of the Jury despite its variety and unpredictability. The only exception would be for systematic bias undermining the fairness of the system.

Isn't the purpose of the Perjury rule to punish the state of mind of the person intentionally lying to a court of law? To say that looking at a regularly constituted court of law and misleading their inquiry is Wrong?

I don't see what perjury has to do with the merits of the underlying case.

And I agree with the poster above that no one argued Clinton deserved to go to jail for his crime.

Judge Richard Posner said that if Clinton appeared before and were convicted of the things he appeared to be guilty of, Posner would sentence him to (IIRC) 30 to 45 months.

But Clinton orchestrated a huge cover-up that included not just repeated perjury and obstruction, but repeated public and private deception, involved his official spokesman, his wife, and the Secretary of State, in an attempt to derail a private civil action.

The Plame thing was different. Wilson had be retailing a story about Iraq -- that Hussein had not tried to buy uranium -- which Wilson knew to be false (Wilson told the Senate that Iraq was trying to establish "trade ties" with Niger; Niger has nothing to sell but uranium and goats). Presumably the administration was pissed about this (rightly so, I would think).

The allegations are:
1. the administration decided to sabotage Wilson by pointing out that his wife was a CIA employee, and
2. that disclosure was forbidden by law.

(2) is somewhat controversial. The law is a little vague and the facts are in dispute. Moreover, the predicate (1) is laughable. Why would being married to a CIA agent make Wilson (who convinced nobody who didn't already agree with him) any less plausible? Why would this constitute "discrediting" him in any sense?

But Fitzgerald investigated anyway. Never found anything but an inconsistency: Scooter remembered a brief, long-ago conversation differently than the reporter he was talking to remembered it. Possibly Scooter was lying -- apparently, Fitzgerald convinced a DC jury of that.

And for that, he gets three years in jail? Clinton walks, Sandy Berger walks, and Scooter goes to the Iron Hyatt?

I don't think it's administration defenders who are benefiting from a double-standard here.

Except of course that Plame did not qualify for classified status under the IIPA. So there could not be a crime under IIPA anyway

How do you know this? Do you have access to classified information, or are you just regurgitating what you have read on some blog?

And to Milhouse: I fully accept that some people at the CIA did not like Cheney, but the referral was made by a CIA attorney with knowledge of Ms. Plame's status and knowledge of the IIPA's terms. Unless you can cite to me some evidence that this attorney was a partisan hack, out to sabotage the Republicans' electoral chances, I am going to presume that the CIA attorney who made the referral was doing his or her job.

And, I might add, the DOJ under Ashcroft (which had this matter for over one month), would not have appointed a special prosecutor if Ms. Plame's job did not qualify under the IIPA, as there would not have been any need to look into violations of the IIPA if her position did not qualify.

This is why I think the referral was appropriate and Fitzgerald's investigation of the IIPA referral was appropriate, and Libby's lying to him and the grand jury was wrong.

But, as for Libby, I think commuting his sentence so that he gets out after a very short stay in jail, plus a fine (with a rule that he cannot use funds raised by others to pay it), would be fine. We put too many people in jail, as it is.

I can't see what's hypocritical about saying that a) Clinton should have been jailed; and b) Libby's crime was no worse than Clinton's, so he should not be treated more harshly.

Let's assume, arguendo, that O.J. Simpson got away with murder (in the criminal case). By your logic doesn't it follow that we shouldn't prosecute murder in the criminal courts any more?

Now do you see what's hypocritical?

And re:

[T]he definition specifically did include oral sex.

OK, IIRC the more precise issue was that the definition arguably did not include Clinton receiving oral sex. I believe that was his defense. (I admit I don't want to spend the time to get steeped in the details on this. Hopefully others will if necessary.)

I understand the gut reaction of many Republicans that we're seeing two different rules of law.

I can't say I understand it. Fitzgerald is a career Republican, appointed as US Attorney for the Northern District of Illinois by George W Bush, and selected as Special Counsel by James Comey (another GOP Bush appointee).

The judge, Reggie Walton, is also a Bush appointee, ironically chosen for his tough-on-crime sentencing pattern.

So I just don't get the wild-eyed cries of "liberal conspiracy run amok." Granted, there's no shortage of popcorn-munching onlookers who have a leftward bent, but really could you please spare me the drama queen histrionics?

Wait a minute. So Fitzgerald (Steve) or the CIA (Christopher) is the arbiter of whether Plame was covert? Steve, I don't know if you practice law, but typically the rule is you hand over the evidence and then the other side gets to use it to argue its legal points, if it can. you don't get to say "I have no evidence that would help you" and therefore avoid turning over evidence.

Christopher:

The CIA is not the arbiter of whether someone is "covert" for purposes of the IIPA-- the court is. If you turned someone in for burglary, should the court presume that the elements of the crime of burglary are met because you did so?

Steve: To your point about the information request, I think that the court ought to have required some proof that a crime was possible before granting an enhancement. The burden in sentencing is not as high, but it is still ont he prosecutor. And an enhancement should not have been granted without Fitzgerald providing some evidence that a crime at least could have been committed here.

Can you point to some case law describing the standard for "overseas service"?

Nope. But I can point out that the CIA classifies employee service types and dates of same in their personnel records. Which would settle the issue quickly, yet has never been offered in court. If the CIA itself did not consider her to be "serving" overseas during the relevant period, it would be damn tough to make an IIPA prosecution stand up. And Fitzgerald's informal summary of his (non-evidenced and unreviewed) correspondance with the CIA notably dodges that point. AND--repeat ad infinitum--provides no evidence, simply the prosecutor's unsupported assertion by implication.

Except of course that Plame did not qualify for classified status under the IIPA. So there could not be a crime under IIPA anyway

Don't know that either. The evidence to establish it has never has never been offered in court. The entire issue of Plame being "covert" under the meaning of the IIPA statute has not been directly addressed, other than by the cited prosecutorial hearsay. "Because I say so!" Heh.

The judge himself said he remains completely ignorant as to whether or not Plame was "covert" under the meaning of the IIPA statute. If he's that unsure, he shouldn't be considering it as a factor--either for Libby, or against him. Nor is it a required element for Fitzgerald's assertion that he was investigating potential IIPA violations, though it might be relevant to the question of whether or not he knew there had been (or not been) a violation at the time Libby was questioned.

Which would not, IMHO, let Libby off the hook. If he perjured and obstructed, he perjured and obstructed, and my pity meter is seriously unstirred as to his conviction. But it's somewhat relevant in the sentencing enhancement--he received double the base sentence on the assertion that he actually impeded the investigation of IIPA violations. If the assertion is untrue, the enhancement is not called for. Good luck to his defense team in proving that.

side note - alleged political crimes tend to be prosecuted in DC, meaning DC juries hear these kinds of cases. That is about as good a home field advantage for would-be Democratic defendants as they could hope for. Perhaps the GOP should seek to create concurrent jurisdiction for such cases in Utah. . .

Cooper gave the grand jury a very different account. He said that at the end of their conversation, he asked if Libby had heard anything about Wilson's wife being involved in sending her husband on his now infamous trip to Niger to check out the uranium allegation. As Cooper has put it, "Libby responded with words to the effect of, 'Yeah, I've heard that too.'"

Great job leaking Libby.

And the one reporter that said Libby brought up Joe Wilson's wife said that Libby didn't even have basic facts right:

Libby again referred to Wilson's wife and said she was employed at WINPAC--the acronym for the CIA's Center for Weapons Intelligence, Nonproliferation and Arms Control, a unit of the agency's intelligence directorate. (Libby was wrong. Valerie Wilson was the operations chief of the Joint Task Force on Iraq, a unit within the Counterproliferation Division of the agency's clandestine operations directorate.)

And this reporter never wrote one word about Valerie Plame. Way to get the word out Libby. I don't know about the other alleged leakers, but if you claim this constitutes a campaign of leaking by Libby, then I don't think that word means what you think it means. What Libby and the VP office wanted to do was get the (now) established facts out: The "sixteen words" were well founded. Cheney did not send Wilson or even see his report. Wilson's report supported the premise that Iraq wanted to get yellowcake from Niger.

The Clinton impeachment was the culmination of a years-long effort to nullify Democratic votes. The defense of Clinton was a defense of our votes. That Republicans dressed the charade up as "the rule of law" was to their great discredit. Given that charade, I think it was permissible, even necessary, for Democrats to fight back by nitpicking and legalism. You cannot have the rule of law without nitpicking and legalism. You were uncomfortable, I am sure, to see half our politically active population wheedling and expostulating like defense attorneys with a tough brief. It was a sorry display, but we were six years into an effort to undo our pick for president. We were defending our vote. It would have been bad for everyone, right and left, if Scaife and his checkbook had been able to undo an election.

I realize that this is basic civics, and thus may be beyond some, but impeaching Clinton would not have made either George HW Bush or Bob Dole president. It would have made Al Gore president. How does that constitute "undoing" the election?

you don't get to say "I have no evidence that would help you" and therefore avoid turning over evidence.

Really? You're not familiar with the Brady rule? Unless the judge orders you to turn something over, you only have to turn it over if it's exculpatory.

I think that the court ought to have required some proof that a crime was possible before granting an enhancement. The burden in sentencing is not as high, but it is still ont he prosecutor. And an enhancement should not have been granted without Fitzgerald providing some evidence that a crime at least could have been committed here.

But such proof was presented, in the form of the CIA's summary of Plame's employment history. It's part of the Government's sentencing memorandum, if you care to look it up.

Of course, you could go deeper, and demand to see the classified documents which provide the basis for the summary, in order to test the summary's accuracy. For whatever reason, the defense didn't request those documents in connection with the sentencing. But while it's true that Fitzgerald could have presented MORE evidence than he did with respect to Plame's employment status, I trust you'll agree that you were in error to state that he didn't provide any evidence at all.

Obstruction of justice is a level 14 crime for sentencing purposes, and even with no criminal record, a single count at that level brings a 15-21 month sentence, as the DoJ chart shows. It also carries a 3-level upgrade if "the offense resulted in substantial interference with the administration of justice." That puts Libby's level at 17, with a 24-30 month sentence. If the defendant/convict abused a position of "special trust" -- and as a high-ranking government official, Libby qualifies -- the level on sentencing has to be increased two levels to 19. That puts the potential sentence at 30-37 months -- and that's not accounting for multiple convictions for perjury.

So, 30 months is at the low end of the sentencing guidelines, assuming both upgrades are operative. Note that Libby's lawyers could have argued against the "substantial interference" upgrade, but apparently didn't. If they had, and if they prevailed, we'd still be looking at a level 16, or 21 to 27 months.

I realize that this is basic civics, and thus may be beyond some, but impeaching Clinton would not have made either George HW Bush or Bob Dole president. It would have made Al Gore president. How does that constitute "undoing" the election?

Because we all realized we voted for Clinton as the President, not Gore. "Same party" /= "same person".

Way to get the word out Libby. I don't know about the other alleged leakers, but if you claim this constitutes a campaign of leaking by Libby, then I don't think that word means what you think it means.

What are you talking about? The evidence shows that Libby leaked Plame's employment with the CIA to Judith Miller; once on June 23, 2003 in his office, and again on July 8 over breakfast. Congratulations on pointing out that there were other reporters whom Libby did not leak to.

As for your comment that the word "campaign" does not mean what I think it means, where did I even use the word?

There were at least four separate leakers to the press; Armitage, Libby, Rove, and Fleischer. There's nothing exculpatory in the least about the fact that Libby wasn't the only person in the administration leaking to the press.

In a legal sense, no, I don't think there is. But again, the hue and cry was that the administration had allegedly revealed the name of a covert operative, exposing other operatives in the field to significant risk of exposure and perhaps death, as well as potentially imperiling ongoing CIA operations and national security, as part of an attempt to get back at Ambassador Wilson. The unfairness that people are seeing here is that all the harm of exposure flows from Armitage's leak, not Libby's. Novak is the one who published. And Armitage leaked to Novak.

That's quite irrelevant to the basis for Libby's conviction, which was obstruction of justice and perjury. Indeed, whether there even was any underlying wrongdoing is irrelevant, because he was convicted for lying about his recollection of the contents of a conversation he had with a journalist -- the actual content of that conversation doesn't really matter. So the fact that there were other leakers, like the fact that there were leaks in the first place, is irrelevant to his conviction.

But what that fact is relevant to is how people understand the fairness of going after Libby in particular. They understood this to be an investigation of intentional leaks that potentially put CIA covert operatives in danger. Indeed, I'll confess to a certain disappointment that this investigation didn't end up with huge numbers of government officials and bureaucrats getting tossed in jail for giving confidential information to the media -- that kind of leaking happens all too often for my comfort. But that aside, Libby didn't make the leaks in question here, Armitage did (albeit not with any malign intent, and not, as far as anyone can tell, as part of any kind of scheme to get back at Amb. Wilson). Libby's leaks, in marked contrast, seem to have gone nowhere. But Armitage is still gossiping away, and Libby is going to be in jail (unless he wins on appeal).

Regarding the idea (somewhat separate) that Libby's perjury covers up some sort of scheme in the VP's office -- I don't see how that works. He lied about, what, one conversation, right? And we know generally what happened in that conversation, don't we? Because the journalist on the other side told us, and the jury thought the journalist was more credible. Is there something I'm missing here? Is there a more general imputation that if he lied about this one conversation with this journalist then, ergo, there must have been moustache-twirling conversations with the VP that he just didn't testify about?

The unfairness that people are seeing here is that all the harm of exposure flows from Armitage's leak, not Libby's. Novak is the one who published. And Armitage leaked to Novak.

I'd note that there are very few nonpartisan people seeing "unfairness" here; it's pretty much just partisan screamers. But setting that aside, imagine yourself as the investigator. You have evidence of Armitage leaking to Novak, Libby leaking to Miller, Rove leaking to Cooper, maybe Ari Fleischer leaking as well. Are you going to tell me that you're not going to look into the overall question of what was going on, reasoning that since Novak was the only one who published, the only thing to do is focus on the leak to him and ignore all the other leaks happening at the same time?

Remember, it's the leak, and not the publication, that's the potential crime here. The publication is how we know there was a leak(s); but what the IIPA criminalizes is the disclosure of a covert agent's identity to someone who's not entitled to know. That includes Novak, Miller, Cooper, and any number of other people.

Set aside the actual cast of characters for a moment. Let's say some random traitor within the CIA gives a reporter a list of covert CIA operatives. The reporter, being a good citizen, doesn't publish those names. Would you truly object to a prosecution of the leaker, on the grounds that if there was no publication, there was no harm?

The CIA's statement that someone is "covert" is not the same thing as a finding that the person is "covert" for purposes of IIPA.

Fitzgerald didn't argue that he had no evidence, he argued that the evidence of covert status was "irrelevant" because it didn't affect whether Libby lied. That argument worked under Brady at the liability phase (where the underlying crime was irrelevant) but not at the sentencing phase (where he was asking for a sentence enhancement that relied on a theory that Libby was essentially an accessory after the fact to an IIPA violation).

There are two meanings to the word covert. One, meaning classified, is used internally at the CIA supposedly interchangably with the word classified. The other, which the Libby defenders use among others, is defined in the IIPA which has several conditions. Whether she meets the definition of Covert under the IIPA has never been adjudicated (I hope I used the word correctly) in court and in fact Fitzgerald argued successfully it was not necessary for the Libby case to be decided.

Please indicate which meaning you are using, otherwise people might think you are more interested in scoring partisan political points than legal accuracy.

Fitzgerald didn't argue that he had no evidence, he argued that the evidence of covert status was "irrelevant" because it didn't affect whether Libby lied.

You're just making this up. Fitzgerald said in his court papers, quite clearly, that he thought evidence of covert status was irrelevant BUT, in any event, he had no evidence in his possession that would tend to indicate Plame wasn't covert. I can say it a third time, if you'd like.

The CIA's statement that someone is "covert" is not the same thing as a finding that the person is "covert" for purposes of IIPA.

Except the CIA didn't say she was "covert," end of sentence. The CIA, in the document annexed to the Government's sentencing memorandum, said that her CIA employment was classified and that she had worked overseas several times during the last five years in a NOC (non-official cover) capacity. These two things are the only two elements of the definition of "covert" under the IIPA; thus, the CIA document certainly counts as "some evidence" of Plame's covert status, contrary to your assertion that Fitzgerald didn't present any.

I don't buy Andrew Okun's defense of President Clinton that it was people defending their votes with Richard Mellon Scaife as the bogeyman.

Scaife not the only bogeyman, merely representative. And I was not defending Clinton, I was describing my motivation and the motivation of others for defending him at the time. I regard it as a legitimate motivation, even if the defense itself was on the edge. Do you believe that Democrats in the late 90s didn't believe Clinton was being wrongly hounded, and just made up the Scaife stuff, knowing it to be false, to undermine investigations of Clinton they thought meritorious? That's quite a claim. Further, do you believe that the central investigations of Clinton were not at all politically motivated? When conservative foundation lawyers, who'd expressed no interest in sex harassment law previously, flocked to represent poor old Paula Jones, do you think their new-found interest was direct and the fact that the president was the defendant in the particular case they highlighted was coincidence? When Al D'Amato in the Senate suddenly discovered Whitewater, previously a minor and dying case, do you think he was motivated by concern for the integrity of the US financial system, and the fact that the president was a bit player in it was merely the luck of the draw? Do you think the many Arkansans who had something bad to say about Bill Clinton got all those book contracts, magazine and journal commissons, lecture dates and think tank positions because the suddenly the conservative movement wanted to improve the regrettable state of civic affairs in Arkansas, and the fact that an Arkansan was president was merely a funny happenstance illustrating the importance of the nation's new-found concern with Arkansan affairs? Do you think the astonishingly smaller amount of investigation of the Bush White House is only because Bush has brought integrity back to the oval office and changed out the cigars in the cigar box?

Had Starr indicted Clinton for perjury the day after he left office, a lot of people would have whined and complained about the unfairness of it all, but basically Clinton would have been on his own, like Libby, North, Weinberger, whoever. The judge and jury would have done their job and Clinton would have been punished or not. Starr didn't wait. Instead, he took his case to Congress, which decided that the thing had to be done right away and by impeachment. Impeachment is a political process, I kept hearing at the time, and it turned out to be right. Starr and the house presenters and much of the rest of the right were not trying to punish Clinton for any crime he might have committed. They could have done that if they wanted, but they opted not to, because they did not want to punish Clinton. They wanted to destroy the Clinton presidency and punish the people who voted him in for choosing wrong. For that purpose, indictment is useless. So they impeached. You bet your a** we were defending our vote.

>My rule of thumb is this: Change the names. If you think that President Clinton should have been impeached and removed from office for lying to a grand jury, would you feel the same way about President Bush if he did?<

I would of course want Bush ridden out on a rail if he perjured himself to a grand jury. (Lying, recall, is not a crime, but is an element of some crimes.) By the same token, note that Democrats have not moved heaven and earth to get Bush brought before a grand jury. I would not want done to Bush what was done to Clinton ... and it hasn't been. And don't give me that Bush doesn't have a few things that could be worked over. The standard is not whether Bush has ever done something terrible ... I'm assuming he hasn't. The standard is, if talented but ill-intentioned people went over every single shred of paper in the man's personal and business life, every bruised ego or loser he left behind, every public claim he made and drew every inference against him in each case, could they have whipped something up against him? Yes. They can do that to anybody. Sometimes they do. (Clarence Thomas? John Tower?) They did it to Bill and Hillary. They have not done it to Bush. If they had, and after many depositions in many civil suits and many appearances before grand juries, after every person in George and Laura's personal and professional life was interviewed under oath and threatened with jail, if then, they got him on perjury for some bogus thing about what he knew of some old Texas postmaster appointment, I would be against indictment or impeachment. Nobody, not even a president should have to go through that.

He should have been cast from office in '04 because he is a dishonest oaf. He wasn't and the message of the Democrats' resounding lack of impeachment for his malfeasance as president is that short of a Watergate degree of behavior, the answer is elections, not impeachment. We need to elect better men than Bush to be president.

I will say this though, whether Clinton committed a crime or not (and I think we should presume not given the outcome of the Senate trial), the honorable thing for him to do would have been to resign.

Given his stupid, crude and dishonest behavior, I'd be inclined to agree, accept that the whole thing only came in an effort to get him out of office. I actually believe that it was the more honorable action on his part to stay in office. And politically, in the short run, better for Democrats had he left. (President Gore?) Because of the circumstances in which the charges against him arose, it would have been an appalling precedent had he been driven from office. At the end of it, everyone, including Clinton's bitterest enemies, was tired and disheartened and sick of the battle. Good. It was a bogus way of trying to govern.

The CIA of course is not the ultimate arbiter as to whether the IIPA is violated, but the CIA would know if one of its employees has been a covert agent, whose identity that statute was designed to protect (see the Phillip Agee incidents in the 1970s, that gave rise to this statute).

I doubt the CIA would have referred this matter to the DOJ for investigation if Plame had not been a covert agent. And, I doubt John Ashcroft's DOJ would have appointed a special prosecutor to look into this matter further if Plame had not been a covert agent.

So, those who argue that Fitzgerald knew that there was no underlying crime when he began this investigation are likely misinformed, which is understandable given that they are likely just repeating someone else's talking points, and not looking at the facts and law for themselves.

I was very disappointed that Giuliani repeated this nonsense at the Republican debate the other night, as he should know better. I guess he wants to score points with the National Review/neocon crowd, to shore up his shaky support among conservatives.

What gets me about the reaction to Libby's indictment and conviction is that some Republicans have managed to convince themselves that this prosecution of a Republican, by a Republican, who was appointed as special counsel by another Republican DOJ official, and who now has been sentenced by a Republican-appointed judge, is somehow an example of a partisan witch hunt.

That said, I do think the 30 months is probably too harsh. Martha Stewart didn't serve as long for a similar crime.

I realize that this is basic civics, and thus may be beyond some, but impeaching Clinton would not have made either George HW Bush or Bob Dole president. It would have made Al Gore president. How does that constitute "undoing" the election?

Because we all realized we voted for Clinton as the President, not Gore. "Same party" /= "same person".

Well said. Maybe we should have, as a chess move, gone with the Gore angle then. But we voted for Clinton.

But such proof was presented, in the form of the CIA's summary of Plame's employment history. It's part of the Government's sentencing memorandum, if you care to look it up.

I have, and it is not what you say it is. It's Fitzgerald's summary of what he claims the CIA has related to him. It is not "the CIA's summary," and even a "summary" from the CIA itself is not evidence, but assertion. Without the underlying records for evidence, it can be nothing else. What Fitzgerald presented was Fitzgerald's second-hand and non-evidenced description of the CIA's non-evidenced account, and no supporting evidence or documentation is attached.

That's assertion. It has not been established as fact in court. It cannot be determined to be fact without supporting evidence. "Because I say so!" is not supporting evidence.

3) I can't see what's hypocritical about saying that a) Clinton should have been jailed; and b) Libby's crime was no worse than Clinton's, so he should not be treated more harshly.

It's not that bad a thought. Actually, pretty fair. There are reasons the cases are not comparable, but other ways in which they are.

But somebody (not a Democrat) decided they couldn't or didn't want to charge Clinton criminally. Had they, many Dems would have whined, me among them, but it would have ended up in front of a jury. Possibly after his presidency, but in front of a jury. After that, chips fall where they may. But they didn't go that way. They opted instead to impeach, to go after the presidency not the man, to punish not the perjurer, but the people who voted him in. Having manouvred themselves into a position of advantage and having choice of ground, they picked political ground to fight their battle, instead of legal ground. Perhaps they had political aims, not legal ones. Anyway, they chose. They lost. No jail cell for Clinton.

Maybe conservatives were simply convinced by the liberals arguments during the Clinton impeachment and now have taken up the liberal viewpoint. Would liberals also shout "hypocrite" if former disbelievers in anthropogenic global warming became believers after being convinced by watching Al Gore's "An Inconvenient Truth"? I think not, since that's the whole point -- to convince people and change they way they think.

Or maybe those liberals just know that their argument during the Clinton impeachment was only political posturing and therefore don't believe it when someone takes up their old point of view during the Libby case. After all, the conservatives couldn't actually believe it now since they, the liberals, never really believed it back then either.

For what it is worth, I know several Republicans who are not defending Libby's actions or seeking a pardon.

I think it is really the diehard Bush loyalists who are leading this charge, and as usual they are displaying no consistency of principle or adherence to the facts, because the ends always justify the means. Indeed, I think Kristol's editorial in The Weekly Standard really captures the essence of all this: Libby was loyal to Bush, so Bush should be loyal to Libby, and loyalty trumps everything else. And if that isn't true, then what have they been doing all these years defending the indefensible out of loyalty to Bush?

If you read the whole summary, though, I think it's clear that its scope only covers events since January 1, 2002. The CIA expressly says that they won't confirm whether she was an employee prior to that date, so it seems clear that the trips to which they refer must have occurred in 2002 or 2003. Read it again and tell me if you agree.

Not that my arguments are going to influence anyone in this group, but what about this: Clinton-- perjury before a Federal Grand Jury...result? Nothing.(well, loss of meaningless law license). Libby-- perjury before a Federal Grand Jury... result? 30 months in prison, felon status, $250,000 fine, probable loss of legal licence. Sandy Berger-- destroying highly classified documents (in all liklihood as part of a cover-up), lying to FBI... result? $50,000 fine, loss of law license and ZERO jail time.

I suppose you can scream and yell about hypocracy, but who is going to prison? How is it "hypocritical" to point out the massive disparity in punishment meted out here?

The travel in question definitely happened after she began at CPD, is all we can say for sure on the memo's basis. David Corn writes that she began at CPD in 1997. So either she did all that travel in her first year, or she did some of it during the 5-year window.

The dKos timeline, citing Hubris, says that Plame was in at the 2001 bust in Jordan of aluminum tubes destined for Iraq. If she was undercover there, that would do it.

So, let's say it is true that Clinton and Berger unjustifiably got more lenient treatment than Libby. Does that mean Libby should be treated more leniently even if the prosecutor, jury, and judge were following the law and sentencing guidelines?

That, of course, is a ridiculous argument, as others have already demonstrated. So, if you are pointing this alleged disparity out to complain about how Clinton and Berger got off too lightly, you may or may not have a point. But if this is supposed to be some sort of reason to pardon Libby or commute his sentence, then that makes no sense.

No, you voted for "Clinton/Gore." In no ballot could you vote independently for Clinton as President and Gore as Vice-President. It was a package - one vote for both.

Indeed, to be pedantic, you voted for an elector who promised to vote for Clinton and Gore. Under the electoral college system, you never voted for the President directly.

Ah, I get it now. Now I see that it was of no political importance to me whatsoever whether Clinton or Gore was president or the circumstances of Clinton's departure. Having only voted for a ticket consisting of the two of them, I cannot now claim a grievance when the one is hounded mercilessly. After all, I never voted for Clinton.

I suppose you can scream and yell about hypocracy, but who is going to prison? How is it "hypocritical" to point out the massive disparity in punishment meted out here?

It is not so much hypocritical as meaningless. The three don't constitute a meaningful sample of similar cases. Libby and Berger did different things, reacted to it differently, took a different attitude with the prosecutors. It is not a surprise they got different outcomes. Unless you have some evidence of Berger being given a break because of his Democratic political connections or evidence that Libby was being hounded because he is Republican, the two of them simply aren't a large enough sample or similar enough to draw some kind of conclusion.

Clinton, meanwhile, was never charged with a crime. Hard to pin that one on the overly left-wing career staffers at the DOJ, since that really wasn't their call. As a matter of fact, it was kind of out of the hands of the Democrats altogether. That his sentence was somewhat less than 30 months also doesn't mean much, since there wasn't something for him to be sentenced for.

The Clinton impeachment was about removing a manifestly unfit person from public office. If you were a personnel manager, and you knew that a job applicant liked to have sex acts with junior staff, in his office, during working hours, would you hire that man? For anything?

I don't much like Al Gore, but next to Clinton he looks like Sir Thomas More for character.

Clinton lied. To his staff, to his wife (not that she believed him), to the grand jury, to the American people on national TV.

It is a filthy blot on our society that not only did he not resign from office (as over 100 major newspapers urged), he was acquitted by the Senate, and remains an active public figure, collecting millions in speaking fees.

As for Libby: the worst that can be said of him is that he tried to avoid being being dragged into a politically driven witch-hunt, and didn't want to rehash details of half-remembered conversations that might be used to "convict" him. (At the time, leftists were howling that VP Cheney and his alleged co-conspirators should be imprisoned for treason.) The underlying claim of "retaliation" against Wilson was always ludicrous anyway.

If someone filed a report supporting Bush's claim, and that person was selected for the job by his or her spouse, the "whistleblower" who revealed that would be saluted.

Maybe conservatives were simply convinced by the liberals arguments during the Clinton impeachment and now have taken up the liberal viewpoint.

I'm sorry, but those conservatives who are defending Scooter, are they saying they now believe Clinton was being hounded unfairly? Because, if so, I haven't heard it. Maybe they are and I just missed it.

Would liberals also shout "hypocrite" if former disbelievers in anthropogenic global warming became believers after being convinced by watching Al Gore's "An Inconvenient Truth"?

Give me a heads up when a conservative admits to being persuaded of something by Al Gore. Then it will be interesting to see what we liberals have to say about it. I'm guessing you are right on target, and we'll take it in stride.

Or maybe those liberals just know that their argument during the Clinton impeachment was only political posturing...

That ought to be turned around. [After all, the liberals didn't start the Clinton thing, and didn't end it until it got shoved into the Senate, and didn't start or end the Plame business. In both cases, it is conservatives making most of the choices.] Perhaps we can conclude that it doesn't seem like hypocrisy to Scooter's defenders now because their whole attitude during the Clinton thing, their protestations of abiding faith in the Rule of Law and their helpless obedience before its majesty, was political posturing, in fact that it was so clearly political posturing that they can't reasonably be held to it in other cases.

I don't want to tar everyone. I suspect Bob Barr and some others actually believed in what they were doing. I don't think it was very many.

Indeed they did. The whole idea that "creating a hostile work environment" should be illegal and "sexual harassment" via propositioning someone would be an arrestable offense is a construct of the liberal mindset. Without that, Clinton's lecherous propensities would have been viewed as Kennedy's was during his presidency -- no one would have cared (well, outside of steamy tabloids).

I don't see why liberals don't understand "because his wife works for the CIA" is a reasonable response to the question "why did we send this idiot to Niger?" And spare me the whole "they wanted to undo our vote" stuff about Clinton. Clinton broke the law. There are hundreds of people in federal prison, right now, who are there for lying about sex. As a conservative, the one thing I can never forgive Clinton for is his establishment of the idea that presidents can commit felonies as long as they don't relate to official duties.

Clinton was not more a victim of a witch hunt than Libby. I mean, seriously, you want conservatives to believe the same people who think it's okay to disclose the tail numbers of planes used by the CIA in an ongoing operation think it's some outrage when a member of the administration points out Joe Wilson might have been sent to Niger for political reasons? Let's be honest - the whole thing was a politically motivated effort to get Rove.

By the way, if the CIA actually has agents they consider covert showing up to an office at Langly to push papers the agency's in much deeper trouble than is commonly believed.

Btw, compliments on your evocatively rendered window on the Democratic perspective circa Monica-gate. I'm no longer so affiliated, but I was then, and you captured it beautifully. In fact, my blood still boils just thinking about it.

If you're referring to Paula Jones, you're forgetting that her case was dismissed.

Not because her charges were false, but because she couldn't demonstrate harm. Moreover, she was well on her way to getting summary judgment reversed when the supposedly innocent Clinton caved and paid her $850,000.

Clinton was found in civil contempt of court for misleading testimony and ordered to pay Jones $91,000.

Not because her charges were false, but because she couldn't demonstrate harm

Um, in a quid pro quo sexual harassment claim, a necessary part of the charge is proving some adverse employment action. So her "charges," inasmuch as that term means "what would be necessary to prove a case that wouldn't be thrown out as a matter of law" were always insufficient/false.

It was pretty clear that the Eighth Circuit Court of Appeals was going to reinstate Paula Jones' harassment suit against Clinton (not that I am saying they should have revived Jones' lawsuit, but they clearly were going to do just that).

The Eighth Circuit panel that heard her appeal of the case's dismissal made pretty clear that they were going to reverse the dismissal and reinstate her suit against Clinton, at least as to her claim of a hostile work environment.

But at the time she appealed, the Eighth Circuit was going through a pro-plaintiff phase, and watering down the amount of abuse employees have to show to claim a "hostile work environment," and her appeal would thus have probably succeeded. See, e.g., Howard v. Burns Bros., 149 F.3d 835 (8th Cir. 1998) (saying that when the defendant has behaved inappropriately, and the plaintiff is offended, it is generally sufficient to defeat summary judgment sought by the defendant). At that time, under then-existing precedent, Jones could have won.

And cases like EEOC v. Farmer Bros. make clear that Clinton's consensual sexual affairs with other subordinates -- like Monica Lewinsky -- could be deemed relevant circumstantial evidence supporting Paula Jones' own case, meaning that the courts would not view Clinton's lies about his affair with Monica Lewinsky as being "just about sex." (I am not endorsing that line of cases, merely noting that it exists).

Indeed, Clinton brought on himself the wide-ranging inquiry into his sex life by signing legislation -- provisions of the Violence Against Women Act -- that further opened the door to sexual harassment defendants being subjected to invasive inquiries into their sex lives.

Even before he signed that legislation, cases like Farmer Bros. made such inquiries possible. But such inquiries became much broader after Clinton signed the Violence Against Women Act, which changed the federal rules of evidence.

First, are you really saying that the Eighth Circuit was then holding that ONE act of inappropriate behavoir that (i) doesn't involve touching (2) doesn't involve explicit threats or promises, and (3) doesn't lead to any adverse job actions consitutes some form of actionable sexual harassment under Title VII? Because cases making such holdings are rare to non-existant. It's clearly not quid pro quo, because there were no adverse actions, and again, cases finding hositle work environment based on ONE ACT are practically non-existant, and those that do exist, the one act involves pretty gross touching and threats.

Second, "consensual" affairs are "relevant" in discovery, but practically everything is relevant in discovery. That's why this was such a skillfully laid perjury trap.

Another post with 100+ comments with everyone making the exact same arguments as before. Too funny.

Both Clinton and Libby involve politics, pure and simple. The legal arguments are just window dressing on both sides. That explains the switch in positions by liberals v. conservatives.

If President Bush does pardon or commute Libby, it will partly be about compassion for a former staffer but mainly because a political calculation is made. This explains much of the pro-Clinton support in 1997 as well. When our team is involved, we want to support that team, even when we are inconsistent as a result.

That's got to be the lamest, weakest "bitch-slapping" ever. Nothing on the substance besides a throw-away line or two concluding that the case against Libby wasn't, in the author's view, strong. I'm guessing Orin will survive.

What happened in the real world is that Fitzgerald determined at the very outset of his investigation that Plame appeared to meet the two statutory requirements to be covered under the IIPA: the CIA had made efforts to conceal her employment, and she had worked overseas in a covert capacity within the last five years.

In your world, perhaps, but not in the real world.

In the real world Fitzgerald made a big deal out of stating that he had not determined whether Plame was covert or whether the IIPA had ever been violated.

In the trial he was able to withhold from the defense any evidence he had about those questions, on the grounds that they were irrelevant to the trial.

As for "losing" the argument, it was more that conservatives failed to understand what the argument was about. What it was about, as others have explained, was the clear perception that the Republicans in Congress attempted to negate the results of a democratic (small d) election. If it had been "about" perjury or obstruction of justice, then criminal charges should have been brought. They weren't. And if they had been, the Senate vote might well have been an object lesson in the chances of getting the necessary unanimity for conviction.

But now when a Bush administration official is contradicted by reporters (without any independent evidence that he actually lied) that's perjury and should be punished.

Putting aside all the other problems in this sentence, the testimony of the reporters constitutes, you know, actual evidence. And it was supported by a great deal of other evidence.

Joseph Slater's description of sexual harassment law in the 1990s contains errors regarding both law and facts. Those errors obscure the fact that Paula Jones' sexual harassment claim probably would have been revived by the 8th Circuit Court of Appeals.

First, contrary to what he says, Paula Jones did allege that Clinton physically harassed her. She claimed he touched her on her inner thigh. And under 8th Circuit precedent at that time, one act of intimate touching could be enough.

Indeed, even more conservative circuits recognized in dictum that a single instance of physical harassment could be enough for a lawsuit. In Baskerville v. Culligan International, 50 F.3d 428 (7th Cir. 1995, the court overturned a trial court's sexual harassment verdict based on a dozen or so mildly offensive sexual comments made by a woman's supervisor, finding that the conduct was not severe enough to create a hostile work environment in violation of sexual harassment law.

But in dictum, the court said that even a single instance of physical harassment in an isolated setting (it gave the example of harassment in the seclusion of an employee in a hotel room) might be enough for a sexual harassment suit.

(Jones similarly alleged Clinton harassed her in a hotel room).

Second, Joseph Slater is incorrect when he argues that at the time Jones filed her lawsuit, a single incident could only create a hostile environment if it involved PHYSICAL harassment.

There were at least a half-dozen court rulings in the 1990s that allowed plaintiffs to sue for sexual harassment based on a single incident of NON-physical harassment, such as the Maine Supreme Court's decision in Nadeau v. Rainbow Rugs, which held that a company owner's one-time sexual overture to an employee who worked in his home was enough to defeat summary judgment.

Those cases' validity looks dubious today, after Supreme Court rulings like Clark County School District v. Breeden, 532 U.S. 238 (2002), which held not only that one instance of "harassment" didn't create a hostile work environment, but also that no rational employee could think it did (and thus, an employee who complains about such trivial acts can be fired without violation the civil rights laws' ban on retaliation for filing reasonable complaints).

Moreover, in hindsight, a single instance of non-physical harassment doesn't look "severe or pervasive," as the U.S. Supreme Court said is requires for a harassment claim (see, e.g., Faragher v. City of Boca Raton), especially given that the Court has said that even the utterance of a racial "epithet" is not enough for a racial harassment claim if it only occurs once (see Meritor Sav. Bank v. Vinson).

But in the late 1990s, there were a surprising number of appellate court decisions allowing lawsuits for single instances of harassment -- even non-physical harassment --and they provided considerable support for Paula Jones' sexual harassment claim.

And at oral argument on appeal, the three-judge panel that heard Paula Jones' appeal of the dismissal of her sexual harassment case might quite clear in their comments that they were going to reinstate her sexual harassment suit against Clinton, and allow her to try it before a jury.

So at the time Paula Jones sued, her claim was not frivolous, but rather strong enough to defeat summary judgment. And Clinton's perjury about his sexual relations with Monica Lewinsky was thus material to a viable sexual harassment claim.

As I have noted above, cases like EEOC v. Farmer Brothers deem consensual affairs of a supervisor to be relevant to an employee's claim that he made unwelcome advances toward her.

Moreover, Clinton brought such inquiries on himself, since he himself promoted the use of such evidence, and fostered broad-ranging inquiries into defendants' sex lives, by signing into law the 1994 Violence Against Women Act, which broadened the admissibility of defendants' sex lives under the federal rules of evidence to permit more use of evidence about supervisors' sex lives.

The whining by Clinton and his partisans about the intrusiveness of the independent counsel's protracted investigation of Clinton's sex life was thus hypocritical. Clinton and his partisans were perfectly happy to ruin other people's lives by subjecting their personal lives to a sexual inquisition. But they hypocritically objected when it happened to them.

For Clinton, it was a classic case of the proverbial chickens coming home to roost.

1: Clinton was the Chief Law Enforcement Officer of the US. Libby was just an aid to the VP. Big difference.

2: Fitzgerald is a dishonest, unethical prosecutor. For proof of this, go check out JustOneMinute (http://justoneminute.typepad.com/main/). Look at all the sources of information he refused to investigate, because they might have kept him from being able to get a conviction.

It is not the prosecutor's job to get convictions, it is his job to find out the truth. If Fitz had cared about the truth, he would have acted differently.

Fitz is just a slightly more careful Nifong. Neither he, nor any of his actions, deserve respect.

3: I don't believe Libby is guilty. I believe that the Prosecution was dishonest, and that the judge aided and abetted this dishonesty (for example, by refusing to let the Defense call Andrea Mitchell). I favor a pardon not because I think his "crimes" are insignificant, but because I don't believe he is in fact guilty of any crime, and because I think an honestly run trial would have led to a not-guilty verdict.